Remedial and institutional systems - Free Essay Example

Sample details Pages: 5 Words: 1485 Downloads: 4 Date added: 2017/06/26 Category Law Essay Type Compare and contrast essay Did you like this example? Brief 102317 Delivery Date: 13/08/2005 Title: The remedial constructive trust has taken root in the United States and Canada: it is unlikely to do so in England Millet LJ in Restitution and Constructive Trusts 1998 114 LQR p399 Explain the differences between remedial and institutional constructive trusts and the advantages and disadvantages of each approach. Discuss whether judges in England and Wales are likely to adopt the remedial system. Introduction Endorsed in jurisdictions from Australia to the United States of America, the remedial constructive trust is a trust settled by court order as a remedy for a wrong. Entitlement to the remedy is an issue for the substantive law, but the trust itself is created by order of the court, not by the acts of the parties, or even by the obligation to make restitution.[1] Remedial constructive trusts are settled by equity notwithstanding any actual or presumed agreement or intention. Academic commentator s however, continue to debate the issue as to whether the trust is founded on the enforcement of proprietary rights, the avoidance of unconscionable conduct, or crafted as restitutionary remedy. Don’t waste time! Our writers will create an original "Remedial and institutional systems" essay for you Create order In so far as a constructive trust functions as a proprietary remedy, it must be carefully distinguished from the equitable process of tracing. Tracing is a necessary initial procedure for a complainant seeking a proprietary remedy.[2] The process empowers the complainant to specify and recover property held by a third party. It may be utilised in a variety of causes of action, including detinue[3] and conversion at common law and for breach of trust in equity. Note that the ordering of a remedial constructive trust is only one among several remedies that may be granted as a result of a wrong categorised as unjust enrichment. Other possible remedies include a damages order, and legal or equitable remedies as the circumstances of each particular case may dictate. Although extensive consideration has been devoted to the characteristics of the remedial constructive trust,[4] it is submitted that its essential features are still in nascent form,[5] in particular in the context of corpo rate financing. Unhelpfully, common law jurisdictions across the world are not in complete conformity regarding the definition of the trust. That said, Deane Jà ¢Ã¢â€š ¬Ã¢â€ž ¢s obiter on the fundamental features of the trust in Muschinski,[6] , is one possible point of departure. Deane J stated that a constructive trust is: à ¢Ã¢â€š ¬Ã…“A remedial institution that equity imposes regardless of any actual or presumed agreement or intention, and subsequently protects, to deny the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principles.à ¢Ã¢â€š ¬Ã‚ [7] Some of the key characteristics of the remedial constructive trust were identified by Deane J. He found, in particular, that it is not necessary to establish the existence of a pre-existing fiduciary relationship between the parties, although one may well be found to exist. He concluded that the trust is underpinned by long-settled pri nciples of equity and on the basis of à ¢Ã¢â€š ¬Ã‹Å"idiosyncratic notions of fairness and justiceà ¢Ã¢â€š ¬Ã¢â€ž ¢. His Honour resolved that the constructive trust, should properly be viewed as a remedy in personam, fastening to property that may be shaped to give force to principles of equity in sympathy with the considerations of the case at issue. This insightful statement of principle augments the discretionary aspects and flexibility of the remedial constructive trust as a remedy. Furthermore, it is pertinent to note that the recognition of any pre-existing property rights, is not a prerequisite for the establishment of a remedial constructive trust, as is the case with standard institutional constructive trusts.[8] Distinguishing between remedial and institutional constructive trusts The United Kingdom judiciary, inter alios, have tended to stress the differences between the traditional institutional constructive trust and the remedial constructive trust. It has been h eld that the former is created on equitable principles and assumes effect from the date of the circumstances that provoke its creation. Consequently, the institutional constructive trust is said to be acknowledged by the court in a declaratory way. Lord Browne-Wilkinson considered the issue in Westdeutsche Bank Landesbank Girozentrale v Islington London BC.[9] His Lordship came to the view that the remedial constructive trust could constitute a more suitable basis than the resulting trust for the development of restitutionary remedies. His Lordship stated that: à ¢Ã¢â€š ¬Ã‹Å"à ¢Ã¢â€š ¬Ã‚ ¦the court may, by way of remedy impose a constructive trust on a defendant who knowingly retains the property of which the claimant has been unjustly deprived. Since the remedy can be tailored to the circumstances of the particular case, innocent third parties would not be prejudiced and restitutionary defences, such as change of position, are capable of being given effect.à ¢Ã¢â€š ¬Ã¢â€ž ¢ Lord Browne-Wilkinson found, however, that the question as to the assimilation of this remedy into English law should be decided in a future case when the point was directly in issue. English courts in such cases as Metall und Rohstoff AG v Donaldson Lufkin Jenrette Inc[10] and Re Goldcorp Exchange[11] have observed that the remedial constructive trust concept might become part of English Law. That said, the Court of Appeal reached the conclusion, in Re Polly Peck International plc,[12] that although remedial constructive trusts have been endorsed by the courts in the United States and Canada, these observations were obiter and thus non-binding reasoning. On the facts of Westdeutsche Bank Landesbank Girozentrale v Islington London BC, the court ultimately refused to grant a remedial constructive trust given that there was no cogent or arguable case for the grant of such an order. In terms of the difference between remedial and institutional constructive trusts, Lord Browne- Wilkinson found, in Westdeutsche Bank: à ¢Ã¢â€š ¬Ã‹Å"Under an institutional constructive trust, the trust arises by operation of law as from the date of the circumstances which give rise to it: the function of the court is to declare that such a trust has arisen in the past. The consequences that arise from such a trust having arisen (including the possibly unfair consequences to third parties who in the interim have received the trust property) are also determined by rules of law, not under discretion. A remedial constructive trust, as I understand it, is different. It is a judicial remedy giving rise to an enforceable equitable obligation: the extent to which it operates retrospectively to the prejudice of third parties lies in the discretion of the court.à ¢Ã¢â€š ¬Ã¢â€ž ¢ Institutional constructive trusts are therefore based on principles of certainty and distinguished trust property. They are granted in a variety of situations, including in particular those involving dom estic property disputes. A remedial constructive trust, however, is available in cases where no trust of any kind existed before its creation. The latter comprises a creation of the court, functioning retrospectively and yielding an enforceable obligation in equity. Subject to the facts of the case, this may operate to the detriment of third parties. Deane J mused on the validity of the distinction between institutional and remedial trusts in Muschinski.[13] He opined: à ¢Ã¢â€š ¬Ã‹Å"à ¢Ã¢â€š ¬Ã‚ ¦the constructive trust is seen as both a à ¢Ã¢â€š ¬Ã‹Å"remedyà ¢Ã¢â€š ¬Ã¢â€ž ¢ and an à ¢Ã¢â€š ¬Ã‹Å"institutionà ¢Ã¢â€š ¬Ã¢â€ž ¢ Indeed for the student of equity, there can be no true dichotomy between the two notions.à ¢Ã¢â€š ¬Ã¢â€ž ¢ Muschinski[14] indicates that unjust enrichment could conceivably justify the use of a remedial constructive trust. However, it is surely prudent to consider the option on a case-by-case basis, with one keen eye on traditional, equitable notions of unconscionability, justice and fairness on the facts. THE END WORD COUNT: 1153 (excluding footnotes bibliography and case list) BIBLIOGRAPHY Restitution and Constructive Trusts (1998) 114 Law Quarterly Review The Law of Tracing, Lionel D Smith, Clarendon Press, Oxford Chang on Equity and Trusts, Taylor P., SPR Core Text CASES Muschinski v Dodds (1985) 160 CLR 583 Fortex Group Ltd (in rec liq) v MacIntosh [1998] 3 NZLR 171 Westdeutsche Bank Landesbank Girozentrale v Islington London BC [1996] AC 669 (HL) Metall und Rohstoff AG v Donaldson Lufkin Jenrette Inc [1990] 1 QB 391 Re Goldcorp Exchange [1995] 1 AC 74 Re Polly Peck International plc (No 4) [1998] 3 All ER 812 1 Footnotes [1] For comment see Chang on Equity and Trusts, Taylor P., SPR Core Text, Chapter 13. [2] See, for background comment: The Law of Tracing, Lionel D Smith, Clarendon Press, Oxford ISBN 0-19-826010-9. [3] At law, detinue is a common law remedy to secure the return of chattels (personal property or portable property) which have been wrongly converted to the use of a third party, or are being unlawfully withheld from a person with good title to the chattel. [4] See eg: Millet LJ in Restitution and Constructive Trusts 1998 114 Law Quarterly Review p399. [5] For supporting comment see: Deane J in Muschinski v Dodds (1985) 160 CLR 583. [6] Albeit a case concerning a de facto property dispute. [7] See note 5 above. [8] Note that the remedial constructive trust was described in similar terms to Deane J in Muschinski in Fortex Group Ltd (in rec liq) v MacIntosh [1998] 3 NZLR 171, by Tipping J. However, the latter judge also observed that his musings should not be regard ed as definitive, or as precluding further development of the concept. [9] [1996] AC 669 (HL). [10] [1990] 1 QB 391. [11] [1995] 1 AC 74. [12] (No 4) [1998] 3 All ER 812. [13] See note 5 above. [14] See note 5 above.

The Unusual Details Regarding Why You Want to Attend This College Essay Samples That Most People are not Aware Of

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Hrm 590 Compendstion Decisions Free Essays

HRM590: Compensation Decisions Your job now is to pull together all the information you’ve completed so far in class and make salary decisions for your team. You have completed Cathy’s evaluation and received assignment feedback. This is the first year that you’ve made salary decisions for this team. We will write a custom essay sample on Hrm 590 Compendstion Decisions or any similar topic only for you Order Now Be sure to carefully review the information provided. You may simply type in the cells as the text will automatically wrap. You are required to: 1. Enter Cathy’s appraisal rating (she is last on the list); 2. Within your budget dollars, make your salary decisions based on performance for your team taking into consideration their Salary Grade and the Pay Ranges identified for the Salary Grades (fill in the Salary Decision Column); 3. Within your budget dollars award bonus money (fill in the Bonus Dollars Column); 4. In the green line areas, provide your substantiation and risk analysis for the salary decisions made; and 5. Identify any items from this scenario in whole you may want to address. Evaluation ratings are 1 = Needs Improvement to 5 = Exceeds Expectations Salary Budget: $9,000 Bonus Budget: $5,000 Company Designated Salary Pay Ranges A2 = $12,750 – 17,000 A3 = 16,500 – 22,000 A4 = 21,000 – 28,000 |Employee Information |Salary |Current Salary |% at Pay Scale* |Appraisal Rating |Salary Decision |Bonus Dollars | | |Grade | | | | | | |Substantiation and Risk Analysis: John is a major asset to the company and the appraisal rating justifies that. His skills and experience may be hard to replace if he decides to retire early. He was given the | |highest salary decision of 8% which exceeds the company designed salary pay range. It would be a loss to the company to lose such a valuable employee. His bonus was also outstanding based on his appraisal rating | |given. | |Alice is a Hispanic female, 42YO with 17 years’ service. Alice is a good worker. She has a lot of |A4 |$22,500 |80. 4% |3 |3% |600 | |potential, which netted her the higher rating. She needs some more skills and experience at this level| | | | |$675 | | |though. | | | | | | | |Substantiation and Risk Analysis: Alice has been with the company for 17 years and does a good job, however, she has much to learn at this level and still may need more training to improve in her skills and | |experience. Her appraisal rating was average but still enough to earn the lowest salary increase of 3% and a bonus. | |Calvin, 28YO black male with 9 months service. Calvin is a real go getter. He hasn’t been with the |A4 |$26,500 |94. 6% |4 |3. 75% |600 | |company long enough to earn a higher rating, but his work is outstanding, high skill set and is looking| | | | |$994 | | |to stay with our company for a career. | | | | | | |Substantiation and Risk Analysis: Calvin is an outstanding worker and will be a major asset to the company. Even though he has not worked with us for too long, we were able to give him at 4 rating which shows that he| |is doing exceptional job in his position. Normally, employees with ratings of 4 would earn a 5% salary raise, but since Calvin has only worked for us for 9mths, we pro-rated his bonus and percentage to 3. 75%. | |Jane is a 32YO white female with 12 years’ service. Jane joined the company as an A3. Her work is |A3 |$19,100 |86. 8% |3 |3% |400 | |satisfactory, nothing to brag about, but she’s been with the company awhile and can be dependable. | | | | |$573 | | |Substantiation and Risk Analysis: Jane does get her job done but has not shown any more exceptional work. She is reliable and dependable in her work and there has been no complaints or issues. She earned a 3 rating| |which is average; this gave her a 3% raise and a small bonus. | |Beth is a 64YO Asian female with 41 years’ service. Beth stated she would probably retire this year, |A3 |$19,700 |89. 5% |3 |3% |400 | |but has yet to turn in her paperwork. She’s had a history of higher ratings, but her ratings have | | | | |$591 | | |slipped over the last 6 years. | | | | | | |Substantiation and Risk Analysis: Beth has been an outstanding worker but in the last 6 years, her ratings have dropped. She meets expectations of her job which gave her a ranking of 3. She was able to get the lowest| |raise of 3% and a small bonus. | |Ben is a 47YO white male with 27 years’ service. He’s a good worker, been with your group for a couple|A3 |21,000 |95. 5% |4 |5% |600 | |years. Hasn’t yet expanded his skills, which you thought he’d do even though hired for a specific job. | | | | |$1050 | | |What he does, he does outstandingly. | | | | | | | |Substantiation and Risk Analysis: Ben proves to provide excellent work when performing a specific job, but still has not stepped out to expand new skills. He earns a 4 rating which gives him a 5% raise and a $700 | |bonus. |Alex is a 30YO white male with 9 years’ service. He’s quite a guy, performs well at his job. Started |A2 |$15,800 |92. 9% |5 |8% |600 | |as an occupational worker and has worked his way into management. | | | | |$1264 | | |Substantiation and Risk Analysis: Alex has work his way up to earn what he does now in management. He has shown work that proves that he produce his job well in the manager level. He has earned the highest salary | |raise of 8% based on this appraisal rating with a bonus. | |Ken is a 20YO Hispanic male with 1 year service. Ken is young and fresh. You think he should have |A2 |$17,000 |100% |4 |6% |400 | |been hired at a higher level because his skills are so good. You don’t want to lose him because he | | | | |$1020 | | |adds value to the business. You’ll probably jump him to an A4 position soon. | | | | | | | |Substantiation and Risk Analysis: Ken should have been hired at a higher salary grade and does outstanding work for the skills that he has. He is currently paid 100% of his the salary pay scale but will most likely | |be moved to the A4 salary grade soon. To keep him within the company, we are offering him 1% more than the offered increase for the rating of 4 (which is 5%). He would be a great addition to the company and we may | |not want to lose him since we plan on moving him up. | |Cathy is your 19YO (ethnicity unknown) femaleHR Receptionist. She has been with the company for 1 |A2 |$12,000 |70. 6% |3 |3% |200 | |year. You recently completed her performance evaluation. | | | | |$360 | | |Substantiation and Risk Analysis: Cathy has been with our company for 1 year and does average work. She still has areas that she needs to focus on but also has areas of work that she completely exceeds. She does | |need much improvement in certain areas for a new hire. She was rated 3 since she meets work performance which gives her a 3% raise and a small bonus. | *This shows the pay scale range for each employee by percentage. Formula is current salary ? top salary range. This percentage range should be between 75% – 100%. Overall Comments: The salary decision was decided based on the appraisal rating. Ratings of 5 earned an 8% salary raise, ratings of 4 earned a 5% raise, and ratings of 3 earned a 3% raise. Anyone with a rating of 2 or 1 did not earn a raise, which no employee was rated that this year. These salary raise percentages were also considered based on the salary budget given of $9,000 which $8,729 was the expected salary raises overall. The decision was made to give any employee with a 3 rating earning or higher a raise because they did met, highly met, or exceed expectations. Employees that ranked 2 or lower in the appraisal rating needed some improvement or needs lots of improvement, therefore would not earn a raise or a bonus. There was 1 employee, Calvin, that we pro-rated his salary and bonus since he has only been with the company for 9 months. The bonus decision was decided by appraisal ratings and the salary grade the employee was in. Employees in A4 salary received a higher bonus and the lower salary grade received a lower bonus. Also, amounts were distributed based on the bonus budget of $5,000. See chart below. Estimated Bonus Given Based on Salary grade and appraisal rating Appraisal Ratings | |5 |4 |3 | |A4 |1000 |800 |600 | |A3 |800 |600 |400 | |A2 |600 |400 |200 | Salary grade Actual Bonus Given Based on salary grade and appraisal rating Appraisal Ratings | |5 |4 |3 |Total | |A4 |1000 |600* |600 |2200 | |A3 |0 |600 |800 |1400 | | | | |(2 employees x 400) | | |A2 |600 |400 |200 |1200 | |Total |1600 |1600 |1600 |4800 | Salary grade We were able to keep the bonus within budget of $4800. The amounts estimated happened to work with the bonus budget given. If bonus budget were a different amount, amounts estimated would change also. There were possibilities that not all employees, even if they have a rating of 3 or above, would have gotten a bonus, however, for this year, it worked out that all employees were able to earn a bonus. The remaining amount of $200 not used in the bonus budget was the pro-rated amount from employee, Calvin, which has only worked for us for 9 months. How to cite Hrm 590 Compendstion Decisions, Essay examples